Professional Documents
Culture Documents
(P) A 159/2000
2008/07/02
Maritz, J et Mainga, J
CONSTITUTIONAL LAW
versus
political community and whilst it incorporates all the civil and political
rights arising from that legal relationship, it also entails the duty of
She entered the then South West Africa on 2 February 1981. She has
entered the then South West Africa lawfully and that she subsequently
1
The judgement of the International Court of Justice in the
Nottebohm Case (Liechtenstein v Guatemala) 1955 ICJ Reports 4 at 24
4
citizen” shortly after Independence. The change did not affect the
2 of that Act of aliens who take up residence in the country (c.f. Swart
the experience left her shaken and apprehensive that she might be
Control Act, 1993. The thought that she could obtain her release in
2
As defined in s. 1 of the Admission of Persons to Namibia Regulation Act, 1972.
5
action, I should add. The approval was subject to sections 5(1)(g) and
26 of the Act, i.e. that she should renounce her South African
terms of s. 5(6) of the Act. The oath (or solemn affirmation), which is
Head of State.
[6] The applicant was not willing to renounce her South African
wanted to retain the security that she could return to her country of
birth as of right. For the time being, however, she planned to reside
and work in Namibia. She maintains that the provisions of the Act
“1. Setting aside section 5(1)(g) of the Namibian Citizenship Act, Act No
14 of 1990 ... as invalid and contrary to the Namibian Constitution.
3. Declaring that the applicant need not renounce her South African
Citizenship for respondent to grant her a Certificate of Naturalisation as a
Namibian citizen.
some of those allegations and, when the matter was called, her case
Toivo.
7
hearing but declined to make an order of costs. What follows are the
reasons for that order, which I should add, have also been requested
by the applicant.
[9] The principal issue, central to the dispute between the litigants,
“5(1) The Minister may, upon application made in the prescribed form,
grant a certificate of naturalisation as a Namibian citizen to any person who
satisfies the Minister that –
Act as the oath of allegiance set out in the First Schedule of the Act,
“I, A.B., do hereby declare on oath that I unreservedly renounce all allegiance
and fidelity to any foreign country or the Head of State of whom I have
heretofore been a citizen, and that I will be faithful to the Republic of
Namibia, observe its laws, promote all that which will advance it and oppose
all that may harm it.
So Help Me God.”
“Subject to the provisions of this Act or any other law, no Namibian citizen
shall also be a citizen of a foreign country.”
Constitution. It reads:
(a) are ordinary resident in Namibia at the time when the application for
naturalisation is made; and
(b) have been so resident in Namibia for a continuous period of not less
than five (5) years (whether before or after the date of Independence);
and
9
they must pertain to those criteria, she submits. The only two criteria
citizenship. Her counsel argues that persons are not more or less
the State in doing or not doing so. The applicant further contends
Constitution are also limited: such laws may not be “inconsistent with
provisions of the Act are not inconsistent with the Constitution. She
implication only.
citizenship scheme, the plain meaning of Articles 4(5) and 4(9) of the
scheme constitute the context within which Articles 4(5) and 4(9) of
particular.
[16] The constitutional template of values and words is, after all, the
scheme in our Constitution lies in the long and painful history of our
to find dignity, life and refuge elsewhere; many to take up the struggle
against those injustices … but most of those who had left, were
determined that they and their descendants would return one day
when the country of their birth has been liberated from colonial rule.
expatriates married – not always with those who shared their origin or
countries all over the world where they had been given sanctuary.
and South African rule and many remained and adopted the country
3
c.f. Carpenter G, “The Namibian Constitution – ex Africa Aliquid
Novi after All?” and Van Wyk, Wiechers and Hill, “Namibia,
13
the territory as part of the German and South African security forces
to enforce and maintain colonial rule. Not all of them had left before
Independence.
through free and fair elections under the supervision and control of
important for them and those who had suffered in the war of liberation
descendants. So too, it must have been for the other inhabitants of the
for the Constitutional Assembly who had to draft and adopt the
“Given the historical background within which our Constitution was framed,
it had to address the diversity of origin of all Namibia’s people to bring about
one nation under a common citizenship – accommodating everyone with a
rightful claim to such a citizenship and, at the same time, affording others
the opportunity to become Namibians …”
future.
right by the mere incidence of birth in the country (ius soli). Those
birth – not even if, after the date of Independence, they have acquired
[23] Much the same holds true for the second group: those who have
Article 4(2).
[24] In respect of the third and fourth groups (those who are citizens
4
Compare the proviso to Article 4(8) of the Constitution
5
Article 4(7) of the Constitution
16
4(8).
[25] Parliament has the same powers to provide for the loss of
6
Article 4(5)(c) of the Constitution
7
Article 4(6) of the Constitution
17
sovereign States whose citizenship they held the day before. Unless
thereto).
[30] The spirit which permeates the design of the Namibian citizenship
8
S. 2 of The Interpretation of Laws Proclamation, No. 37 of 1920
9
The 1961 UN Convention on the Reduction of Statelessness
19
foster peace, unity and a common loyalty to a single state” (c.f. par 5
of the values bonding its people and disciplining its government.” This
(SC) at 3H 10.
[32] Whilst loyalty to the Namibian State may well be assumed from
Namibian citizens tied to the country by birth or blood (jus soli or jus
spirit thereof; it does not run counter to the citizenship scheme in the
[33] The elegance with which the Constitution deals with ever-
myself that one may not “stretch or pervert the language” 12to interpret
Court may not strike down legislation falling within the ordinary
Article.
the safety of the state and to the community”. Whilst these notions
undoubtedly fall within the meaning of the word, must its meaning be
12
As Seervai cautions in The Constitutional Law of India, 3rd ed.,
Vol I at p 68
22
both to the personal health of the prospective applicant and that of the
community and the word “morality” may refer to the character of the
person as well as the moral values of the community, I do not find any
reason why the word “security” may not be interpreted to apply to the
security of the State, that of the community in its various regions and
13
Per Kentridge AJ, I in S v Zuma and Others, 1995 (2) SA 642 (CC) at
652 in fine
14
The Concise Oxford English Dictionary, 10th ed., 2002, p 1296
23
particularly the aggregate of civil and political rights to which they are
and civil rights to which the individual is entitled in that State. From
“nationality” as follows18:
15
International Law: A South African Perspective, 3rd ed., p.283
16
Volkereg, 2nd ed., p.163
17
1955 ICJ Reports 4
18
at 23 in fine
24
Namibian law, for the greater part, essentially two sides of the same
coin: the one being definitive of the legal relationship between the
Namibian State and its citizens in a national context and the other
this judgment - but, they are not material to the real issues in this
the legal relationship between the Namibian State and its citizens.
[37] With this in mind, I shall next examine whether and, if so, how
19
Booysen,op cit., p163 and Starke, “Introduction to International
Law”, p341-3
20
c.f. M Wiechers, “Kleurlingburgerskap in Suid-Afrika”, 1972 THRHR
1; Dugard, op cit, p 282 and Tshwete v Minister of Home Affairs
(RSA), 1988 (4) SA 586 (A) at 613E -614G
25
personal level.
The Act established the Defence Force to act and conduct military
sacrifice – if required – even your life for her is clearly one of the most
persons serve in the Force with divided loyalties or, worse, actual
open the door for those persons to become members of the Namibian
forces of the country to which they (also) owe allegiance. In fact, if the
21
Compare s. 7(1)(a) of the Defence Act read together with the
definition of “citizen” in s. 1 thereof
27
[40] The converse is also true. If those who have acquired Namibian
join the Namibian Defence Force but later resign because of their
and return to that country, not only will the considerable costs
with the Namibian State22. This legal assumption is all good and well
in times of peace and economic prosperity when one may not always
the hostile State. This too, may have serious implications for
22
See: Starke, Introduction to International Law, 10th ed., p350
23
Art. 46(1)(a) of the Constitution
24
Section 13(1) of the Electoral Act, No. 24 of 1992, s. 6(1) of the
Regional Councils Act, No. 22 of 1992 and s. 7(1) of the Local
29
Service will put the interests of Namibia and her people first; that their
foreign country or its Head of State and that Namibians may enjoy the
security of knowledge that those holding these vital public offices will
people and State in the people’s best interests and for the peace, order
Authorities Act, No. 23 of 1992 read with Articles 17(1) and 69(1) of
the Constitution
25
Compare: the citizen-requirement of directors or members of the
controlling bodies under the Namibia Water Corporation Act, No. 12 of
1997, the Water Resources Management Act, No. 24 of 2004 and the
Electricity Act, No. 2 of 2000
26
cf. the Namibian Broadcasting Act, No. 9 of 1991; the Namibian
Communications Commissions Act, No. 4 of 1992 and the Namibia Press
Agency Act, No. 3 of 1992
27
Members of the Land Advisory Commission established by s 2 of the
Agricultural (Commercial) Land Reform Act, No. 6 of 1995
28
The citizenship–requirement for the Director and Deputy Director of
the Commission under the Anti-corruption Act, No. 8 of 2003
29
Under the Local Authorities Act, No. 23 of 1992 and the Regional
Councils Act, No. 22 of 1992
30
State promote the interests of those States rather than that of Namibia
that of Walvis Bay and the islands off the shore of Namibia. Those
areas remained under South African control for some time after
provisions of the Walvis Bay and Off-shore Islands Act, No. 1 of 1994.
renunciation requirement had not been set and those residents could
30
Section 18(2) of the Public Service Act, No. 13 of 1995
31
other State.
qualify for appointment to the same positions. Over and above the
and I need not mention the many security concerns which may arise if
national level.
naturalisation are struck. This judgement does not allow for the many
examples which may be cited and I shall only mention one in the
law.
[48] The Minerals (Prospecting and Mining) Act, No. 33 of 1992 reserves
small scale mining for Namibian citizens only. As such, it accords the
large number of small scale miners the security that they are
31
Article 4(4) of the Constitution.
33
foreigners are allowed to escape the much more onerous and investor-
after these wrongful acts are committed"; the State concerned has a
“…(T)he state has a certain responsibility for the acts of its citizens or
other persons under its control of which its agents know or ought to
know and which cause harm to the legal interest of another state. On
the other hand, the state has a legal interest represented by its
citizens, and those harming its citizens may have to account to the
state protecting the latter. This accountability may take the form of
subjection to the extra-territorial application of the national criminal
law to acts harming citizens. More important than this, however, is
the diplomatic protection exercised by a state in respect of its
nationals. If nationals are subjected to injury or loss by an agency for
which another state is responsible in law, then, whether the harm
occurs in the territory of a state, or res communis, i.e. the high seas or
outer space, or in terra nullius, the state of the persons harmed may
present a claim on the international plane”.33
[50] One only needs to read this passage - and many books have
follows logically from the nexus between the two concepts that the
upon the conferring State most or all of the duties, rights and
32
Starke, op cit., p 342-3
35
relation to the same individual are matters affecting both the security
[51] A case which illustrates the point on one of the many incidences
brought shortly after the end of the Second World War, involved a
33
Brownlie, Principles of Public International Law, 4th ed., p.518-9
34
op cit., p 346
36
the seized property had it been maintained. One of the defences raised
by Guatemala was that the matter was not admissible for adjudication
in any event not to have lost, or not validly to have lost, his German
nationality.”
of the State”; it confirmed that “by taking up the case of one of its
- its right to ensure, in the person of its subjects, respect for the rules
35
at p 25 of the report
36
At p 26 of the report
37
because “(n)aturalisation was asked for not so much for the purpose of
national of a neutral State, with the sole aim of thus coming within the
Article 4(5)(c) must be interpreted with the purpose, tenor and spirit
to fail.
[54] In view of this conclusion, the Court does not intend any
1991 and Act 1 of 1994). Whether Parliament was also entitled to draw
decision of a case”.
respondent’s counsel did not move an order of costs in the event of the
[56] It is for these reasons that we made an order at the time that the
__________________________
MARITZ, J
I concur.
____________________________
MAINGA, J